Citation Nr: 0328324
Decision Date: 10/21/03 Archive Date: 10/28/03
DOCKET NO. 02-11 958 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to a compensable evaluation for myositis of the
lumboparavertebral muscles.
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from February 1977 to
February 1980.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 2002 rating decision of the Regional
Office (RO) that denied the veteran's claim for a compensable
rating for his service-connected low back disability.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
2002)) became law. This law redefined the obligations of VA
with respect to the duty to assist and included an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits, including
which evidence, if any, the veteran is expected to obtain and
submit, and which evidence will be obtained by VA. See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
In this case, the veteran has not been provided with notice
of what specific information and/or specific medical or lay
evidence, not previously submitted, is necessary to
substantiate his claim for an increased (compensable) rating
for his low back disability, and what specific evidence, if
any, the veteran is expected to obtain and submit, and what
specific evidence will be retrieved by VA. In this regard,
the Board notes that an October 2001 RO letter referenced
primarily other issues for adjudication, and only informed
the veteran a VA examination had been scheduled in
conjunction with the issue on appeal.
Further, in a decision promulgated on September 22, 2003,
Paralyzed Veterans of America v. Secretary of Veterans
Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept.
22, 2003), the United States Court of Appeals for the Federal
Circuit (Court) invalidated the 30-day response period
contained in 38 C.F.R. § 3.159(b)(1) (2003) as inconsistent
with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion
similar to the one reached in Disabled Am. Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir.
2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9
(2002)). The Court found that the 30-day period provided in
§ 3.159(b)(1) to respond to a VCCA duty to notify is
misleading and detrimental to claimants whose claims are
prematurely denied short of the statutory one-year period
provided for response.
In his substantive appeal submitted in July 2002, the veteran
indicated that he was receiving treatment for his low back
disability. These records have not been obtained. In
addition, the Board observes that new regulations pertaining
to the evaluation of disabilities of the spine became
effective on September 26, 2003, and the veteran has not been
apprised of this change. See 68 Fed. Reg. 51454 - 51458
(Aug. 27, 2003).
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO for action as
follows:
1. The RO must review the claims file
and ensure that all VCAA notice
obligations have been satisfied in
accordance with the recent decision in
Paralyzed Veterans of America v.
Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003), and Quartuccio v.
Principi, 16 Vet. App. 183 (2002), as
well as 38 U.S.C.A. §§ 5102, 5103, and
5103A, (West 2002), and any other
applicable legal precedent.
2. The RO should contact the veteran and
request that he furnish the names,
addresses, and dates of treatment of all
medical providers from whom he has
received treatment for his low back
disability since 2001. After securing
the necessary authorizations for release
of this information, the RO should seek
to obtain copies of all treatment records
referred to by the veteran that have not
already been associated with the claims
folder.
3. If appropriate, the veteran should
then be afforded a VA examination by a
specialist in orthopedics, if available,
to determine the nature and extent of his
low
back disability. All necessary tests
should be performed. The orthopedic
examiner should comment on any functional
impairment due to pain and the pathology
associated with pain should be described.
With respect to the subjective complaints
of pain, the examiner should be requested
to specifically comment on whether pain
is visibly manifested on movement of the
joints, the presence and degree of, or
absence of, muscle atrophy attributable
to the service-connected disability and
the presence or absence of any other
objective manifestation that would
demonstrate disuse or functional
impairment due to pain attributable to
the service-connected disability. The
claims folder should be made available to
the examiner in conjunction with the
examination.
4. The RO should consider the veteran's
claim for an increased rating for his
lumbar spine disability pursuant to all
rating criteria in effect during the
course of his appeal, to include
effective from September 26, 2003
pursuant to 68 Fed. Reg. 51454 - 51458
(Aug. 27, 2003). Thereafter, if the
determination remains adverse, the RO
should furnish the veteran a supplemental
statement of the case that includes the
pertinent Diagnostic Codes, to include as
in effect from September 26, 2003. The
veteran should be afforded a reasonable
period of time in which to respond. The
case should then be returned to the Board
for further appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).